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SA/346/1983 16/ 16 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SECOND
APPEAL No. 346 of 1983
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CHUNIBHAI
NATHABHAI PATEL & 4 - Appellant(s)
Versus
AMBALAL
DAHYABHAI PATEL - Defendant(s)
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Appearance
:
MR
VC DESAI for
Appellant(s) : 1 - 5.
MR BR PARIKH for Defendant(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 15/02/2011
ORAL
ORDER
Heard
learned advocate Mr. VC Desai on behalf of appellant, learned
advocate Mr. BR Parikh appearing for respondents. The present
appellants are original defendant and present respondent is original
plaintiff.
The
brief facts of present second appeal are as under:
“The
Patel Ambalal Dahyabhai has filed regular civil suit no. 103/1975
against present respondent on the ground that plaintiff is an owner
and in possession of land bearing survey no. 37/1 and 36 situated at
Bhatera, Taluka Kapadwanj. The said land is belonging to plaintiff
and his name is also recorded in revenue records. According to
plaintiff, on western side of his land, there is a land bearing
survey no. 34 belonging to defendants and in possession of
defendants. According to plaintiff, he has right of way to go to
his land bearing survey no. 37/1 and 36 through western sedha of
survey no. 30/40/3 and 40/2 and then towards eastern sedha of survey
no. 32/2 and then towards eastern sedha of survey no. 34 belonging
to defendants and thereafter turning to western sedha of survey no.
37/2 and then towards his land bearing survey no. 37/1 and 36.
According to plaintiff, he is using said way with carts, bullocks,
agricultural instruments since time immemorial without any
interruption, peacefully as right of easement. The plaintiff was
using same within the knowledge of defendant upto period of two
years preceding date of suit.
The
plaintiff has alleged that defendant no. 1 has put thorns on
southern edge of survey no. 34 belonging to defendant no. 1 and
thereby defendant no. 1 had restrained plaintiff in using suit way.
According to plaintiff, he has no other way to go to his land
bearing survey no. 37/1 except suit way. Therefore, suit was filed
by plaintiff for declaration that plaintiff has right of way to go
to his land bearing survey no. 37/1 and 36 through suit way and to
restrain defendants from interfering and disturbing plaintiff in
using suit way by permanent injunction.
The
defendants have filed their written statement exh 13 and denied
averment made by plaintiff in his plaint. According to defendants,
plaintiff has right to go to his land bearing survey no. 37/1 and 36
through survey no. 32/2 and 38, 37/2 and plaintiff had not used suit
way. In written statement defendants have denied fact that they had
put thorns on southern side of survey no. 34 and had encroached
plaintiff in using suit way.
On
the basis of aforesaid pleadings, issues have been framed by Trial
Court vide exh 54. The plaintiff Ambalal Dahyabhai Patel has deposed
on oath vide exh 74. The copy of record of right are also produced
on record exh 75 and 76. The defendant no. 1 was examined before
Trial Court vide exh 78 and produced copy of judgment in said suit
vide exh 65 and map prepared by Commissioner appointed by Court in
said suit is also produced by exh 64. In said map, suit way is
shown in red line. The map exh 80 is prepared by Commissioner
appointed by Court in present suit and panchkyas is also produced
vide exh 79. Considering copy of record of right exh 75, 76 and 77
and evidence of plaintiff and defendants as well as map produced
along with panchnama exh 79, 64 and 80.
The
Trial Court has considered evidence on record as well as considering
exh 88 evidence of Chunibhai Nathabhai and thereafter judgment and
decree is passed in favour of plaintiff and held that plaintiff has
right to use suit way with Cart, bullock etc as mentioned in para
10(A) of plaint and defendants are restrained from interfering and
disturbing plaintiff in using suit way with cart, bullock and plough
etc by permanent injunction. The judgment and decree passed by
Trial Court on 5/1/1980. Against which, Regular civil appeal no.
27/80 preferred by defendants, which appeal has been dismissed by
Lower Appellate Court on 24/8/1983 while confirming judgment and
decree passed by Trial Court. The reasoning given by Lower
Appellate Court in para 8 to 13 are quoted as under:
“8. It
is to be noted that the map of the situation of the suit way and the
land situated around there is prepared in this case and is produced
at Ex. 80. The map which was produced in the Civil Suit no. 242/66
is produced in this case at Ex. 64. That suit was filed by one of
the adjoining land owner against the present defendants alleging
that the defendants have no right to pass from the suit way but they
have to pass for going to their field from the way which parallel is
the suit way. Both these maps are an alogus to each other so far as
the position of the suit way is concerned. However, it is the say
of the defendants that the plaintiff has a right to pass from the
suit way upto the land bearing S. No. 39 and from there the
plaintiff has to pass from the land bearing S. No. 32/2 of the Patel
Shankerbhai Kalidas and from there the plaintiff has to enter to his
fields bearing S. No. 36 and 37 by passing through the field bearing
S. No. 38 and not from the field of the defendants bearing S. No.
34. It is not the case of the defendants also in the pleadings or
in the documentary evidence that the plaintiff has other way for
reaching his fields. Under circumstances all that we have to as
certain is as to whether the plaintiff has a right of way from the
field bearing S. No. 34 of the defendants or has the right of way
from the field bearing S. No. 38 of Ishwarbhai Gelabhai who is the
owner of the field bearing S. No. 38.
9. Now
it is to be noted that P.W. Ishwarbhai Gelabhai Ex. 81 who is the
owner of the land bearing S. No. 38 whown in the maps at Ex. 80 and
Ex. 64 has stated in his deposition that the plaintiff has a right
of way from the field bearing S. No. 34 of the defendants and not
from his field bearing S. No. 38. Now it is to be noted that
nothing appears from the deposition of this witness Ishwarbhai
Gelabhai that the plaintiff has ever passed from the field bearing
S. No. 38 of this witness for going to his field. Of course, P.W.
Ishwarbhai Gelabhai was subjected to a very lenghty cross
examination before the lower court by showing that the relations of
this witness are not cordial with the defendants. However, it is to
be noted even it it can be said that the relations of this witness
are not cordial with the defendants, the same would not go to show
that this witness is telling a false story.
10. In
this connection, it would be pertinent to note that in para 6 of the
written statement at Ex. 13 it is an ambiguously stated by the
defendants that the plaintiff has not passed from the suit road
except since last more than 15 to 20 years and therefore the suit of
the plaintiff is time barred under the law of limitation. It is to
be noted that the learned pleader Shri Patel for the appellants has
failed to satisfy me as to how the law of limitation will come in
the way of the plaintiff. On the contrary it clearly appears from
this statements in para 6 of the written statement of the defendants
that the plaintiff is passing from the suit road since last 15 to 20
years. This lands assurance to the deposition of the plaintiff
Amabalal Dahyabhai at Ex. 74 that he is passing from the suit road
and entering his fields from the way of the field of the defendants
since very beginning.
11. The
learned pleader Shri Patel for the appellant has argued before me
that the plaintiff has cut off the “vad” and has
thereafter obtained temporary injunction. Now it is to be noted that
there is nothing on record to substantiate that the plaintiff has
cut off “vad” in order to establish falsely his right of
way from the land of the defendants. Had it been so, the defendants
would not have stated in their written statement para 6 as I have
stated above, that the plaintiff is passing from the suit road since
last 15 to 20 years. Under these circumstances, I am unable to
agree with Shri Patel for the appellants that the plaintiff has cut
off the “vad” to set a right of way falsely from the
land of the defendants.
12. It
is important to note that one Bai Masur who is the adjoining land
owner had filed a Civil suit no. 242/66 against the present
defendants. In that case it is an admitted fact that the defendants
have claimed their right of way from the suit way. It can therefore
be said without any hesitation that if the defendants can claim
their right of way from the suit way it would not lie in their mouth
to say that the plaintiff has no right of way from the suit way
especially when the land of the plaintiff is situated adjacent to
the land of the defendants and especially when there is no evidence
to shown that the plaintiff has ever passed from the land bearing S.
No. 38 of one Ishwarbhai Gelabhai for entering on his land. As I
have stated above, there is nothing on record to show that the
plaintiff can enter the land of his ownership from any other way
except by passing from the field bearing S. No. 34 of the defendants
or by passing the field bearing S. No. 38. As, I have stated above,
as there is no evidence to show that the plaintiff was passing from
the field bearing S. No. 38 in order to reach his field and also in
view of para 6 of the written statement of the defendants at Ex. 13.
I am of the opinion that the only way for the plaintiff to enter
his land is from the land of the defendants bearing S. No. 34 under
these circumstances it can be said without any hesitation that the
plaintiff has a right of way from the land of the defendants bearing
S. No. 34 for going to his field. The defendant No. 1 has stated in
his deposition in the Civil Suit No. 242/66 that he has a right to
pass from the field of Patel Shankerbhai Kalidas bearing S. No. 32/2
for going to his field. Under these circumstances when it is the
case of the defendants in prior Civil suit no. 242/66 that they can
reach to their field by passing through the field bearing S. No.
32/2 of Patel Shankerbhai Kalidas the story of the defendants can
not be relied on to say that the plaintiff has no right to pass from
that road and the plaintiff is passing from the field bearing S. No.
32/2 of one Patel Shankerbhai Kalidas. Under these circumstances
when the plaintiff is passing from the field bearing S. No. 32/2 the
next field for him to reach his field is the field bearing S. No. 34
of the defendants. Under these circumstances the lower court was
justified in not relying on the deposition of the defendant
Chunibhai Nathabhai at exh. 88.
13. The
learned pleader Shri Patel for the appellants has cited before me
the case of Dwijesh Chandra V/s. Naresh Chandra, reported in A.I.R.
1945, Calcutta 492. It was held by the Calcutta High Court in that
case that,
“A
map by itself is nothing but statements made by the maker by means
of lines and pictorial representation instead of by word of mouth as
to the state or configuration of a particular site and the objects
standing thereon. To admit in evidence statements made by a third
party who is not called as a witness. In other words, it amounts to
admitting hearsay. Mere proof of the map by itself is only proof of
the fact that he map was prepared by the maker thereof. It is no
proof of the correctness of its contents, and therefore, the mere
proof of the map under S. 11 cannot make it admissible in evidence,
as to the correctness of its contents without calling the maker
thereof. The mere fact that a map, inadmissible in evidence in a
case has been subsequently relayed by the commissioner in that case
cannot make it relevant and admissible in that case.”
The
lower court has considered the oral and documentary evidence on
record to come to its conclusion regarding the right of way of the
plaintiff from the filed of the defendants. Under these
circumstances though the ratio of the decision cited above by Shri
Patel for the appellants lays down a very sound principle of law,
the same is not applicable to the facts and circumstances of the
case according to my opinion. Even if we ignore the maps produced
in this case it can be said from other oral and documentary evidence
on record
and from the pleadings of the parties that the plaintiff has
established his right of way from the field of the defendants
bearing S. No. 34. Under these circumstances the lower court was
justified in decreeing the suit of the plaintiff respondent. It is
therefore no necessary for me to interfere with the findings arrived
at by the lower court in its impugned judgment. I, therefore, hold
that there are no merits in this appeal and therefore the same
deserves to be dismissed.”
In
view of aforesaid reasoning given by Lower Appellate Court, I have
considered submission made by both learned advocates vehemently and
also considering following substantial question of law
framed/formulated by this Court at the time of admitting second
appeal on 20/1/1984:
“(A) From
Exh: 88 (Deposition of Appellant No. 1 in Civil Suit No. 242/66) and
Exh: 60 & Exh: 80 (Being map prepared by Commissioner in C.S.
No. 242/66 & C.S. No. 103/75) whether courts below have erred in
interpreting that after leaving the north west corner of Survey No.
32/2, “Suit way” means from the eastern sedha of Survey
No. 34 & thereafter towards western sedha of Survey No. 37/2 &
thereafter towards suit Survey numbers?
(B) Looking to
the existence and situation of tree of “Samadi” in
Survey No. 34 and looking to the contents of Panchakyas Exh 79,
whether courts below have erred in holding that “suit way”
for present suit is from Survey No. 34 as alleged by respondent?”
I
have considered original record of Below Court which has been
received by this Court and also considering map produced on record
before Trial Court, which has been produced by Court Commissioner in
pursuance to order passed by Trial Court. The map suggests that
plaintiff is having clear suit way being old one, right of easement
has been proved and this being a shortest way to reach to
plaintiff’s land survey no. 36 and 37/1 and 37/2. The land
suggested by defendants can not be accepted because on the basis of
evidence which are on record and documents which has been produced
by respective parties and considering panchkyas as well as two
report produced by Commissioner with map, both Below Courts have
rightly examined matter on the basis of evidence which can not be
considered that findings given by Below Court is baseless and
perverse. There is no perversity of finding given by Below Court.
The entire matter has been examined by Below Court on the basis of
facts. The substantial question of law, which has been formulated
by this Court is in fact based on fact and no real substantial
question of law is having general importance.
This aspect has been
examined by Apex Court in case of Gurudev Kaur V. Kaki &
Ors reported in AIR 2006 SC 1975 where following head note
are quoted as under:
“A. Even
prior to amendment, the consistent position has been that the Courts
should not interfere with the concurrent findings of facts. After
1976 Amendment, the scope of S.100 has been drastically curtailed and
narrowed down. The High Court would have jurisdiction of interfering
under S.200, CPC only in a case where substantial question of law are
involved and those questions have been clearly formulated in the
memorandum of appeal. At the time of admission of the second appeal,
it is the bounden duty and obligation of the High Court to formulate
substantial questions of law and then only the High Court is
permitted to proceed with the case to decide those questions of law.
The language used in the amended section specifically incorporates
the words as ‘substantial question of law’ which is indicative of the
legislative intention. It must be clearly understood that the
legislature never wanted second appeal to become ‘third trial on
facts’ or ‘one more dice in the gamble’. The effect of the amendment
mainly, according to the amended section, was : (i) The High Court
would be justified in admitting the second appeal only when a
substantial question of law is involved ; (ii) The substantial
question of law to precisely state such question; (iii) A duty has
been cast on the High Court to formulate substantial question of law
before hearing the appeal; (iv) Another part of the Section is that
the appeal shall be heard only on that question. (Paras 68, 69)
The
rationable behind allowing a second appeal on a question of law is,
that there ought to be some Tribunal having a jurisdiction that will
enable it to maintain, and, where necessary, re-establish, uniformity
throughout the State on important legal issues, so that within the
area of the State, the law, insofar as it is not enacted law, should
be laid down, or capable of being laid down, by one Court whose
rulings will be binding on all Courts, Tribunals and authorities
within the area over which it has jurisdiction. This is implicit in
any legal system where the higher Courts have authority to make
binding decisions on question of law. (Para 67)
In
judicial hierarchy finality is absolutely important because that
gives certainty to the law. Even in the interest of litigants
themselves it may not be unreasonable to draw a line in respect of
the two different categories of litigation where procedure will say
at a certain stage that questions of fact have been decided by the
lower Courts and the matter should be allowed to rest where it lies
without any further appeal. This may be somewhat harsh to an
individual litigant; but, in the larger interest of the
administration of justice, this view is juristically sound and
pragmatically wise. (Para 60)
The
fact that, in a series of cases, the Supreme Court was compelled to
interfere was because the true legislative intendment and scope of
S.100 CPC have neither been appreciated nor applied. A class of
Judges while administering law honestly believe that, if they are
satisfied that, in any second appeal brought before them evidence has
been grossly misappreciated either by the lower appellate Court or by
both the Courts below, it is their duty to interfere, because they
seem to feel that a decree following upon a gross misappreciation of
evidence involves injustice and it is the duty of the High Court to
redress such injustice. It is clear that the justice has to be
administered in accordance with law.”
10. The
scope of Second Appeal under Section 100 has been considered by Apex
Court in case of Hero
Vinoth (Minor) v. Seshammal reported
in (2006)
5 SCC 545,
wherein, it is held as under
:
“The
High Court should be satisfied that the case involved a substantial
question of law, and not a mere question of law. Also, a substantial
question of law has to be distinguished from a substantial question
of fact. The phrase “substantial question of law”, as
occurring in the amended Section 100 CPC is not defined in CPC. The
word substantial, as qualifying “question of law”, means
– of having substance, essential, real, of sound worth,
important or considerable. It is to be understood as something in
contradistinction with – technical, of no substance or
consequence, or academic merely. A question of law having a material
bearing on the decision of the case (that is, a question, answer to
which affects the rights of parties to the suit) will be a
substantial question of law, if it is not covered by any specific
provisions of law or settled legal principle emerging from binding
precedents, and, involves a debatable legal issue. The question of
law raised will not be considered as a substantial question of law,
if it stands already decided by a larger bench of the High Court
concerned or by the Privy Council or by the Federal Court or by the
Supreme Court. A substantial question of law will also arise in a
contrary situation, where the legal position is clear, either on
account of express provisions of law or binding precedents, ut the
court below has decided the matter, either ignoring or acting
contrary to such legal principle. In the second type of cases, the
substantial question of law arises not because the law is still
debatable, but because the decision rendered on a material question,
violates the settled position of law. [Paras 18, 20, 21, 23 and
24(ii)]
Sir
Chunilal v. Mehta and Sons Ltd., v. Century Spg. & Mfg. Co. Ltd.,
1962 Supp (3) SCR 549 : AIR 1962 SC 1314, followed
Rimmalapudi
Subba Rao v. Noony Veeraju, AIR 1951 Mad 969 : (1951) 2 MLJ 22 –
(FB), approved
However,
it is clear that he legislature has chosen not to qualify the scope
of “substantial question of law” by suffixing the words
“of general importance” as has been done in many other
provisions such as Section 109 CPC or Article 133(1)(a) of the
Constitution. The substantial question of law on which a second
appeal shall be heard need not necessarily be a substantial question
of law of general importance. But a substantial question of law which
was involved in the case. (Para 21)
Guran
Ditta v. Ram Ditta, (1927-28) 55 IA 235 : AIR 1928 PC 172; Dy.Commr.
v. Rama Krishna Narain, 1954 SCR 506 : AIR 1953 SC 521, relied on
To
be a question of law “involved in the case” there must be
first a foundation for it laid in the pleadings and the question
should emerge from the substainable findings of fact arrived at y
court of facts and it must be necessary to decide that question of
law for a just and proper decision of the case. Where the facts
required for a point of law have not been pleaded, a litigant should
not be allowed to raise that question as a substantial question of
law in second appeal. An entirely new point raised for the first time
before the High Court is not a question involved in the case unless
it goes to the root of the matter. (Paras 20 and 23)
Santosh
Hazari v. Purushottam Tiwari, (2001) 3 SCC 179, relied on
It
will, therefore, depend on the facts and circumstances of each case
whether a question of law is a substantial one and involved in the
case or not, the paramount overall consideration being the need for
striking a judicious balance between the indispensable obligation to
do justice at all stages and impelling necessity of avoiding
prolongation in the life of any lis. (para 23)”
Recently, in Second
appeal, existence of Substantial question of law is considered to be
condition precedent and whether non framing of question causes
prejudice to party or not, it becomes irrelevant, has been examined
by Apex Court in case of Municipality Committee, Hoshiarpur V.
Punjab State Electricity Board & Ors reported in 2010 AIR SCW
7020. The relevant Head Note is quoted as under:
“(A) A
second appeal cannot be decided merely on equitable grounds as it
lies only on a substantial question of law which is something
distinct from a substantial question of fact. The Court cannot
entertain a second appeal unless a substantial question of law is
involved as the second appeal does not lie on the ground of erroneous
findings of fact based on an appreciation of the relevant evidence.
The existence of a substantial question of law is a condition
precedent for entertaining the second appeal, on failure to do so the
judgment cannot be maintained. The existence of a substantial
question of law is a sine qua non for the exercise of jurisdiction
under the provisions of Section 100, C.P.C. It is the obligation on
the Court to further the clear intent of the Legislature and not to
frustrate it by ignoring the same. (Paras 13, 25)
It
is not necessary for the party to show that non-framing of
substantial question of law by High Court, caused prejudice to it.
(Para 38)
(B) The
issue of perversity itself is a substantial question of law and
therefore, S.103 can be held to be supplementary to S.100 and does
not supplant it altogether. Reading it otherwise would render the
provisions of S.100 redundant. It is only an issue that involves a
substantial question of law that can be adjudicated upon by the High
Court itself of remanding the case to the Court below provided there
is sufficient evidence on record to adjudicate upon the said issue
and other conditions mentioned therein stand fulfilled. Thus the
object of the section is to avoid remand and adjudicate the issue if
the finding of fact recorded by the Court below is found to be
perverse. The Court is under an obligation to give notice to all the
parties concerned for adjudication of the said issue and decide the
same after giving them full opportunity of hearing. (para 25) ”
In
view of observation made by Apex Court in above referred cases and
considering substantial question of law which has been formulated by
this Court, according to my opinion, in present second appeal,
substantial question of law is not involved which would require
consideration by this Court. This two question of law, which has
been formulated by this Court on 20/1/1984 are based on facts can
not consider to be substantial question of law.
Learned
advocate Mr. VC Desai is not able to point out to this Court that
factually finding given by Below Courts are incorrect or contrary to
record. Therefore, contention raised by learned advocate Mr. Desai
appearing for appellant can not be accepted. Hence rejected.
According to my opinion, there is no substance in second appeal
preferred by appellant original defendants and there is no
substantial question of law involved in appeal and no perversity of
finding given by Below Court. Therefore, present second appeal is
accordingly dismissed.
(H.K.RATHOD,
J)
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